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Last year, Costco began selling golf balls. As the largest American membership-only warehouse club, Costco’s introduction of a new product such as a piece of sporting equipment would not ordinarily be noteworthy or otherwise unusual. Except that the balls became a bit of a cult phenomenon and flew off the shelves and the company completely sold out of the product by January. The golf balls are now selling for insane amount on Ebay. So what gives? The Costco balls are actually manufactured by South Korea’s Nassau Golf – the same company that manufactures TaylorMade golf balls. Nassau apparently unloaded some of its balls to Costco. Costco then branded the balls with a Kirkland Signature logo and sold them for $29.99 per TWO dozen. After golfers realized the balls’ performance was on par with some higher end balls, word began to spread and the rest is history.

While golfers may have been delighted with Costco’s venture into the golf ball industry, some golf ball manufacturers were not. According to a report from seattlepi.com, Acushnet, maker of Titleist golf balls, sent a cease and desist letter Costco earlier this year, alleging that the Costco balls infringed upon eleven of the company’s patents. In addition, Acushnet alleged that Costco had engaged in false advertising on account of the Kirkland Signature guarantee that all Kirkland products “will meet or exceed the quality standards of leading national brands.”

In response, Costco has filed a declaratory judgment action against Acushnet in the U.S. District Court for the Western District of Washington. As a preemptive strike, Costco seeks a judicial declaration that Costco was not violating Acushnet’s patents and has not engaged in false advertising. According to Costco, while others (including reviewers and golf professionals) have compared the Costco balls to the higher-end Titleist balls, Costco has never done so (at least not publicly).

We have asked the Court to protect our right to continue to sell our Kirkland Signature golf ball against challenges made by Acushnet under patent and advertising laws. . . .The success of the ball with our members and the favorable comments it has received from reputable reviewers apparently have caused Acushnet to believe that our ball directly competes with the Titleist Pro V1 and Pro V1x balls. … Our golf ball will go back on sale in early April, but supplies are limited.

We here at Abnormal Use have never played with the Costco golf balls and, to be honest, with our golf games there would be no discernible differences found with an equipment change. Assuming that the balls actually live up to the hype, we understand why Acushnet may be upset with the competition. If Acushnet is really concerned about patents, however, we would think its real beef would be with Nassau who made the balls in the first place. But our best guess is that this matter is not really about patents at all. The real issue is that Acushnet does not want someone to undercut its premium price point. It is for this reason Acushnet has filed suit against a number of smaller companies who produce economy balls in the past. At least on the surface, it does not appear that Acushnet is concerned with companies like Nassau (a/k/a Taylor Made) who sell golf balls which compete at the same premium price point. Acushnet knows it has that marketplace cornered. But let someone sell a competing product for a percentage of the price, now Acushnet has a problem.

We are curious to see how this one plays out. We are hoping for quick resolution by April, so we can pick up a dozen of those Costco balls for the summer golf season.

Rarely do we write about criminal cases on this site, but we did feel it appropriate to mention a new case in which the defendant challenged his burglary and assault convictions, in part, on the grounds that his lawyer did not object to the admission of certain Facebook posts into evidence. State v. Fawver, No. 32271-8-III (Wash. Ct. App. June 9, 2015 (unpublished).

The facts were these:

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year’s Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been “jumped” at the party.
Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce’s residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

A detective later found a Facebook post on the page of one “Corey Fawner” in which the owner of the account posted the following status update: “Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are.” The defendant was, of course, convicted.

On appeal, the defendant raised the issue of ineffective assistance of counsel because his attorney failed to object to the Facebook post.

Finding the the defendant’s argument that the Facebook post was not properly authenticated to be “questionable,” the court noted as follows:

There are at least as many ways to try a case as there are trial attorneys. Skilled counsel often do not raise objections to the form in which otherwise admissible evidence is entered. In most instances, it will be nigh impossible to establish that counsel erred by failing to make an objection that, if successfully lodged, would simply require the opposing party to offer the evidence in a different manner. That is the situation here. Mr. Fawver does not argue that the posting could never be authenticated; he only argues that this authentication was inadequate. Under the circumstances, it is doubtful that counsel’s decision to not object was such an egregious decision that it constitutes a failure to live up to the standards of the profession.
Nonetheless, even if this type of behavior could constitute error under Strickland, it does not do so here. Mr. Fawver has identified no Washington authority, nor have we, that sets forth authentication requirements for Facebook postings. On that basis alone, it is difficult to conclude that counsel erred since there is no governing authority to establish a failure to adhere to professional norms.

However, the court also went to some length to describe how the Facebook post, or “screen-grab” as it called it, was authenticated:

Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.

Keep that in mind, folks. Most of those authentication components would be the same regardless of whether the evidence was digital in nature. The circumstances surrounding the post, the manner in which the detective was led to it, and the facts contained therein all served to authenticate it.

If the 1990’s was the greatest decade for rock music, Seattle was its greatest destination. The birthplace of grunge, Seattle brought us such influential bands as Nirvana, Pearl Jam, Alice in Chains, Soundgarden, Mudhoney, and Stone Temple Pilots to name a few. Without question, the Seattle sound served as the proverbial nail in the coffin of the over-the-top 1980’s hair bands that had dominated radio the previous decade. And, for this we should be thankful. For those of us here at Abnormal Use, however, we are most thankful that Seattle gave us the famed super group, Temple of the Dog. Not just because the band was the beautiful fusion of Soundgarden and Pearl Jam, blowing the minds of grunge aficionados. But, rather, because Temple of the Dog is the subject of a new lawsuit, and thus, became perfect blawg fodder.

According to a report from the Seattle Times, A&M Records has filed a lawsuit in federal court in Seattle regarding the possession of the master recording tapes to Temple of the Dog’s self-titled – and only – album. As legend has it, Temple of the Dog was recorded at the London Bridge Studios in Seattle over 15 days in 1990. In the suit, A&M Records claims it bought the album from the band in 1991; however, Rajan Parashar, co-founder of London Bridge Studios, won’t turn over the master tapes.

According to the lawsuit, London Bridge produced the album by way of a verbal agreement with the band. A&M Records released the album in 1991. The band subsequently played a single full convert set before parting ways. With the growing popularity of Soundgarden and Pearl Jam, A&M found itself sitting on a gold mine and re-released the album in 1992 to much greater success. At that point, A&M alleges it memorialized a deal with London Bridge in which London Bridge agreed to turn over the master tapes.

If you are wondering why this 1991 transaction has become the subject of a 2015 lawsuit, A&M apparently only recently discovered London Bridge still had tapes. A&M believed that the artists kept the master recordings. Upon that discovery, A&M filed suit.

As music fans, we here at Abnormal Use care not who has the legal right to the tapes. As lawyers, however, we recognize that we are expected to take a side. Nonetheless, it is difficult to do so without knowing the actual scope of any agreements between the parties. Our guess is that neither London Bridge nor A&M suspected the future significance of those tapes back in the early 1990’s. As such, it wouldn’t surprise us if London Bridge agreed to hand them over. Nor would it surprise us to learn that A&M failed to negotiate for them. What we do know is that both sides want those tapes today – some 20 years later.

As we reported on Monday, Amazon.com is apparently none too happy with a person or persons that runs handful of websites with names like “buyamazonreviews.com” that offer to give glowing reviews of sellers’ products on Amazon for a price. We have a few more thoughts on this matter. On April 8th, Amazon filed a lawsuit against the websites’ owner or owners in Washington state court. Amazon calls the of buying and selling of reviews an “unhealthy ecosystem” that is damaging its brand.

The complaint filed in King County Superior Court names an individual named Jay Gentile as the operator of buyazonreviews.com. Amazon also asserted claims against a John Doe defendant since it does not know who is operating buyamazonreviews.com, bayreviews.net and buyreviewsnow.com. Amazon wants the court to shut the websites down for trademark infringement, unfair competition and violation of the Consumer Protection Act. The complaint also seeks an injunction to stoping the selling fake reviews and an order requiring the sites to identify each Amazon review created in exchange for payment.

Amazon expressly prohibits paid reviews and threatens to suspend sellers that buy fake reviews. According to the complaint:

[the] Defendants are misleading Amazon’s customers and tarnishing Amazon’s brand for their own profit and the profit of a handful of dishonest sellers and manufacturers…Amazon is bringing this action to protect its customers from this misconduct, by stopping Defendants and disrupting the marketplace in which they participate.”

Although there’s no way of knowing which products have reviews that may have been purchased form one of these website. However, this review seems to be a very likely candidate as it appears to have been written by J. Peterman.

“Family could lose house over $500,000 barking dog lawsuit.” That’s certainly an attention grabbing headline. A $500,000 judgment over a barking dog? What jury went off the rails with this one? Actually, no jury at all. A Seattle man obtained a $500,000 default judgment against his neighbor after she failed to answer the complaint that he filed against her in state court.

The lawsuit itself really is about about a barking dog. In his 36 page complaint, the plaintiff alleged that the defendant’s dog was responsible for “raucously, wildly bellowing, howling and explosively barking.” He claims that the dog barked so loudly that it could be measured at 128 decibels . . . through double-paned windows! How loud is 128 decibels? About as loud as a jet engine. Plaintiff claims that all of this barking caused him “profound emotional distress.”

A frivolous lawsuit has no friend like a lazy defendant. But $500,000 for emotional distress from dog barking? We’re no experts in Washington civil procedure, but like most states, its rules do call for a judicial inquiry to verify the damages in cases like this one. The rules provide:

When Amount Uncertain. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as are deemed necessary or, when required by statute, shall have such matters resolved by a jury. Findings of fact and conclusions of law are required under this subsection.

Wash. Super. Ct. Civ. R. 55.

So it would appear that some judge looked at this case and determined that $500,000 was a plausible amount of damages. That’s probably the real story here. The defendant now faces an uphill battle in attempted to get the judgment vacated.

We have previously reported on Apple’s legal troubles over its mobile operating systems allegedly allowing unauthorized in-app purchases by minors. Now Amazon.com is facing similar legal problems stemming from charges incurred by minors while using “apps” and playing games. The interesting catch in the case of Amazon is the the suit was not brought by angry parents but by the Federal Trade Commission. In its lawsuit (which it brought in federal court in Washington), the FTC alleges that Amazon unlawfully billed parents for the children’s in-app purchases worth millions of dollars. These unlawful billings allegedly occurred because the set-up on Amazon’s mobile devices allowed game playing children to spend unlimited amounts of money to pay for virtual items within the apps such as “coins” or “stars.” Initially, no password was required in order for the children to make in-app purchases. In early 2012, Amazon updated its system to require an account owner – presumably, an adult – to enter a password only for individual in-app charges. However, a password was only required for charges over $20. Amazon updated its system once again in early 2013 to require a password for all such purchases. However, Amazon allegedly failed to disclose that such an authorization could open a window of up to 60 minutes during which unlimited charges could be occur without further authorization. The FTC’s lawsuit is brought under the FTC Act. Section 5(a) of the FTC Act, 15 U.S.C. § 45, prohibits “unfair or deceptive acts or practices in or affecting commerce.” According to the FTC’s complaint:

In numerous instances, Defendant has billed parents and other Amazon account holders for children’s activities in apps that are likely to be used by children without having obtained the account holders’ express informed consent. [This] constitute[s] unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

Regardless of the outcome of the lawsuit, this litigation risks a big PR hit for Amazon, a corporation which has always a prided itself on a “customer comes first” culture. However, the allegations contained in this lawsuit doesn’t paint the company in the best light. We wonder at this point how the publicity may affect Amazon’s litigation strategy. The complaint alleges that the Appstore manager described this situation as a “near house on fire” situation in 2011, yet it didn’t fully require parental consent for purchases until 2014.

This time, it’s Figueroa v. High Line Medical Center, No. 68272-5-I (Wash. Ct. App. Oct. 14, 2013), a medical malpractice case (the basic facts of which are not important to the Facebook issue). Whatever the facts, the jury found for the plaintiff, and the doctor appealed on a number of issues.

One of his points of error was jury misconduct. The relevant portion of the opinion reads:

Dr. Ryan argues that the court erred in not granting a new trial because of alleged juror and attorney misconduct. Dr. Ryan further argues that the trial court abused its discretion when it denied his motion for a new trial after a juror posted comments regarding the case on Facebook. A juror’s communication with a third party about a case constitutes misconduct.The trial court may grant a new trial only where such juror misconduct has prejudiced the defendant.

Here, no such prejudice was shown. The juror’s comments were limited and innocuous. They were nothing more than a description of the juror’s day interspersed with the following related comments on her jury duty:

• Spent the day in Superior Court doing my civic duty. On jury duty for next 2 weeks.

• Day 3 of jury duty. Very difficult to listen to a translator during the questioning. I can pick out some words.

• Day 4 of jury duty, off on Friday, and back to the jury on Monday. Hope to finish by noon on Thursday. It’s been interesting. Love the 1 1/2 hour lunches.

• My civic duty, jury duty ended today with a negligent claim on the doctor. This was tough to decided $s to the plaintiffs. Mentally exhausting!

While it was inappropriate for the juror to post anything on Facebook regarding the case, these comments were not prejudicial to Dr. Ryan.

(Citations and quotations omitted).

Sure, the status updates were probably harmless, and his only substantive remark referred to the verdict itself, after it had been rendered. However, it seems that the jury’s conduct was almost certainly violative of whatever instructions the judge may have given to the jurors prior to the institution of the trial. Oh, well.

Clark County (WA) Deputy Sheriff Edward Bylsma had an “uneasy” feeling after ordering a Whopper from a Burger King drive-thru. After lifting the bun from the burger, his suspicions were confirmed. As if living an urban legend, he allegedly discovered a large glob of spit on his burger. Fortunately, Bylsma had yet to take a bite out of the burger. Nonetheless, he claims that he now suffers ongoing emotional distress, including vomiting, nausea, food aversion and sleeplessness. After his subsequent lawsuit was appealed to the Ninth Circuit, the Washington Supreme Court was faced with the certified question of whether emotional distress absent physical injury is recoverable under the state’s product liability statutes. See Bylsma v. Burger King Corp., No. 86912-0 (Wa. Jan 31, 2013)

The Model Uniform Product Liability Act (UPLA) includes mental anguish within its definition of the “harm” necessary to maintain a product liability cause of action so long as it is accompanied by some physical manifestation. Washington’s Product Liability Act (WPLA) chose not to adopt the definition but, rather, to follow trends in developing case law. Without any guidance from the WPLA, the Court turned to precedent involving emotional distress from other torts. As it turns out, Washington has permitted recovery in the absence of physical injury in situations involving emotionally laden personal interests such as the improper burial of an infant child. Like these cases, the Court concluded that food consumption is a personal matter and its contamination is associated with disgust and emotional turmoil. As such, emotional distress arising out of food contamination is recoverable under Washington law.

Now that the question is answered, it will be interesting to see how Bylsma’s suit develops. If his case is remanded back to the trial court, he still must prove his emotional distress. Despite the recent “victory,” proving injury may nonetheless be difficult given the fact he did not actually consume the contaminated product. Admittedly, we too would be disgusted to discover that someone had spit on our burger, but it’s not like the resulting fear would be anything new. Isn’t the risk of food loogies an assumed risk of eating fast food? In addition, Bylsma’s newfound aversion to fast food may not be a “damage” at all.

The point of the physical injury requirement is to temper fraudulent emotional distress claims. Emotional distress is completely subjective and very difficult to evaluate. While the Washington Supreme Court’s decision appears to be limited to the food context, it will be interesting to see how many purchasers, but not users, of defective products try to test its bounds.

Recently, in Kirkland v. Emhart Glass S.A., — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”). The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.” The manufacturer’s defense? The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious. Sounds reasonable. After all, in order for glass to be “molten,” it must be exceedingly hot. We doubt the plaintiff was wearing his winter coat while operating the machine.

However, the Court wasn’t buying it.

Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator

[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)

See what they did there? They incorporated the open and obvious nature of the molten glass right into their argument. I’ll take your “open and obvious” and raise you one “failure to provide instructions.” The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy. To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident. (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).

The manufacturer was right. The dangers of molten glass are open and obvious. However, sometimes being right just isn’t enough.

There has been a lot of buzz about the recent Washington Supreme Court decision in Eastwood v. Horse Harbor Foundation, Inc., 241 P.3d 1256 (Wash. 2010) concerning the economic loss rule. Or, rather, what used to be the economic loss rule in the State of Washington, and which has now been re-named and re-vamped as the independent duty doctrine.

As we all know, the economic loss rule bars recovery in tort for purely economic losses caused by a defective product. In other words, without injury to a person or to personal property, there can be no recovery for pecuniary loss. Several jurisdictions, of which Washington used to be one, subscribe to a more liberal interpretation, finding that the rule barred liability in tort cases between parties who had entered into a contract. The theory behind this expansive approach is that the parties could have built the risk of the loss into the contract. That was approach taken by the Washington Supreme Court previously in Alejandre v. Bull, 153 P.3d 864 (Wash. 2007).

Enter Eastwood, which involved the failure of a tenant to maintain a horse farm and centered on the tortious waste of property. Instead of following their own lead, the Washington Supreme Court performed the legal equivalent of a 180 and renamed the doctrine the “independent duty doctrine,” which now focuses on whether some separate duty of care exists independent of the parties’ contractual relationship, rather than focusing on the harm that was suffered:

In sum, the economic loss rule does not bar recovery in tort when the defendant’s alleged misconduct implicates a tort duty that arises independently of the terms of the contract. In some circumstances, a plaintiff’s alleged harm is nothing more than a contractual breach or a difference in the profits, revenue, or costs that the plaintiff had expected from a business enterprise. In other circumstances, however, the harm is simultaneously the result of the defendant breaching an independent and concurrent tort duty. Thus, while the harm can be described as an economic loss, it is more than that: it is an injury remediable in tort. The test is not simply whether an injury is an economic loss arising from a breach of contract, but rather whether the injury is traceable also to a breach of a tort law duty of care arising independently of the contract. The court defines the duty of care and the risks of harm falling within the duty’s scope.

Opinions about the implications of the new rule run the gamut, including speculation whether it is a new rule at all, or simply a narrowing of the interpretation of the economic loss rule. Indeed, the Eastwood court itself, in a footnote, argued that it was not disturbing “[t]he general rule . . . that a party to a contract can limit liability for damages resulting from negligence.” There is also a difference of opinion as to whether the new approach in Washington is a more, or less, fact-intensive inquiry for a court to undertake.

The real question is, given the wide range of interpretations of the economic loss rule across the country, how many courts will follow Eastwood? Will other states continue to narrow the interpretation? For that matter, how many other states will rename the doctrine something else entirely? Furthermore, will this have any immediate effect on the way parties build risk into their contracts and agreements? At least in Washington, that might be a good idea.